Exhibit A is the recent decision of the First Department in Howard S. v. Lillian S., involving a wife who, after several years of marriage and two children, had an extramarital affair and became pregnant. The husband, who was unaware of the affair, had no reason to suspect that his youngest child was not, in fact, his. Later, when he became suspicious, he arranged for a DNA test that established he was not the father. He promptly filed for divorce and argued that, because his wife's conduct constituted “egregious fault” under New York’s Domestic Relations Law, it should be considered as a factor against her in determining equitable distribution.

The Appellate Division, however, disagreed. They concluded that, while the wife’s alleged misconduct cannot be condoned and clearly violates the marital relationship, it did not rise to the level of “egregious fault,” since she neither endangered the lives or physical well-being of family members, nor deliberately embarked on a course designed to inflict extreme emotional or physical abuse upon them. Twisting the knife, the Court also held that the husband was not entitled to recover the money that he had spent supporting the child because he could not establish that he would have immediately filed for divorce had he learned the truth earlier.

The lesson here is simple. Unless he or she has hired a hit man in a botched attempt to rub you out, it just doesn’t matter how bad or nasty or [fill in the blank] your spouse is when it comes to the question of who gets what. So, even though New York doesn’t have no-fault divorce, at least it has no-fault equitable distribution. You might call that progress.

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About Me

I have been practicing law in Manhattan since 1984. My firm, Orenstein & Orenstein, LLC, is AV rated by Martindale-Hubble and has been listed in the Bar Register of Preeminent Lawyers since 2006. I regularly handle both contested and uncontested divorces, as well as legal separations, annulments, paternity cases, child support, custody, and visitation disputes, and prenuptial and postnuptial agreements. I have appeared in numerous trials, enforcement and modification proceedings, and appeals in the Supreme Courts and Family Courts located in New York City, and in Nassau, Westchester and Rockland counties.

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